Problems with Will

edited 30 November -1 at 1:00AM in Deaths, Funerals & Probate
11 replies 1.5K views
Inspector_KnackerInspector_Knacker Forumite
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edited 30 November -1 at 1:00AM in Deaths, Funerals & Probate
Sorry if this goes on...I'm no good at this!
My Dad died in 2011 and left a very simple Will. He left his house to me and my sister, stating the house should be sold and the proceeds split 50-50. She lived with him but they didn't really get on. I am the executor and have probate. She hasn't got the funds to buy my half. She refuses to sell the house and split the proceeds (I'd except a smaller half if necessary) She refuses to go to mediation and she refuses to leave the house under any circumstances. She wants to stay there indefinitely. I have sympathies for her position but I have my own family to think about - my wife can't work due to a badly injured arm, my son has autism and struggles with life, we have severe debt problems and are 18 mths into an IVA. My 'half' would change our situation beyond belief! The whole situation is really distressing and I don't know what to do...this sounds like a real sob story, but I'd appreciate any advice! Thanks
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  • Muscle750Muscle750 Forumite
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    End of the day it's stated the house should be sold she can't over ride that unless she buys you out I'd get legal advice ASAP and as you have probate I presume she has reserved her right?
    The house will have to be sold wether she likes it or not
  • daskadaska Forumite
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    I've not had to go through getting possession of a property under these circumstances so I have no practical advice on what is essentially getting her evicted but... I imagine that at the moment she's sitting pretty knowing that you're going to incur expenses getting her out.

    I would suggest getting proper legal advice on how to achieve this - probably cheaper than guessing and getting it wrong.

    And with me being slightly devious on occasion it occurs to me that as half the value of the house is yours, if you aren't constrained by location/mortgage, could you move your family in there? Having to share might encourage her to re-think her position. Or maybe send her a rental contract to make it clear that she will need to pay the estate for the privilege of staying in a property that isn't hers.
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  • mountainofdebtmountainofdebt Forumite
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    daska wrote: »
    I've not had to go through getting possession of a property under these circumstances so I have no practical advice on what is essentially getting her evicted but... I imagine that at the moment she's sitting pretty knowing that you're going to incur expenses getting her out.

    I would suggest getting proper legal advice on how to achieve this - probably cheaper than guessing and getting it wrong.

    And with me being slightly devious on occasion it occurs to me that as half the value of the house is yours, if you aren't constrained by location/mortgage, could you move your family in there? Having to share might encourage her to re-think her position. Or maybe send her a rental contract to make it clear that she will need to pay the estate for the privilege of staying in a property that isn't hers.

    But would it be the estate that incurred the expenses rather than the OP?

    Also I would find out what similar properties are bringing in in terms of rent and then propose she pays you half
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  • edited 26 March 2013 at 11:25PM
    daskadaska Forumite
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    edited 26 March 2013 at 11:25PM
    I would expect the estate to bear the cost ultimately - though the OP must get proper legal advice to confirm that - but unless there is cash in the estate the OP will have to find the money to effect the eviction so the house can be sold before he can bill back the expenses to the estate.

    It's all very well not being ultimately responsible for the cost but it's the actuality of finding the money up-front which can cause problems. And it sounds as if the OP isn't exactly rolling in petty cash.

    Also, I would propose that as she has sole occupancy of the property belonging to the estate she is liable for the full market rent to the estate, because until she moves out and allows the house to be sold the estate can't be wound up.
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  • madbadrobmadbadrob Forumite
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    Even though the house is to be sold and the value split there is a thing called sitting tenants which is technically what she has become. Also under the hardship rules of Probate she could apply to be left to live there as to force her to leave would put her in a position of hardship. This is going to be a very costly case to have her evicted and could wipe out the estate so go use the free 30 minutes consultation and ask what the likley costs would be. Was your sister made an executor in the will as well or just yourself?

    Rob
  • Fire_FoxFire_Fox Forumite
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    Sorry if this goes on...I'm no good at this!
    My Dad died in 2011 and left a very simple Will. He left his house to me and my sister, stating the house should be sold and the proceeds split 50-50. She lived with him but they didn't really get on. I am the executor and have probate. She hasn't got the funds to buy my half. She refuses to sell the house and split the proceeds (I'd except a smaller half if necessary) She refuses to go to mediation and she refuses to leave the house under any circumstances. She wants to stay there indefinitely. I have sympathies for her position but I have my own family to think about - my wife can't work due to a badly injured arm, my son has autism and struggles with life, we have severe debt problems and are 18 mths into an IVA. My 'half' would change our situation beyond belief! The whole situation is really distressing and I don't know what to do...this sounds like a real sob story, but I'd appreciate any advice! Thanks

    If you are executor and not your sister she has no say on whether the house is sold or not. You are bound by the terms of the will which states it must be sold, she owns nothing the house is part of the estate. Really you should not have left this since 2011.

    Unfortunately your best option is going to be letters from a solicitor, this can be charged to the estate. You may need to serve some sort of notice to quit (if she was a tenant it would be a two months section 21 not sure how it works for someone not paying rent) and then go to the county court to evict. Depends if you want to go that route obviously. It's not overly expensive and you can do some of the work yourself to save money.
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  • edited 28 March 2013 at 9:05PM
    Inspector_KnackerInspector_Knacker Forumite
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    edited 28 March 2013 at 9:05PM
    Thanks for the responses - this hasn't been deliberately left for so long...she has led me a bit of a merry dance for the last few months saying she will consider mediation, then she won't, then she will...now she says she has 'mental health/psychological issues' and is 'too unwell to make any big decisions at the moment'! I have sought some legal advise and have the feeling I'll have to take possession proceedings. Just wish she'd go to mediation - I'd take a smaller half if it helped matters go without upset.
    I am the only Executor, I have probate. There was a small amount of cash in the Estate but all went on funeral exes and paying off my Dads last bills.
  • ValHallerValHaller Forumite
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    daska wrote: »
    I would expect the estate to bear the cost ultimately.
    AFAICS any court case will be Estate vs Sister. If a possession order is granted, costs will be against Sister, who will have to pay out of her share of the Estate, leaving OP's inheritance intact. If Sister wins, costs will be against the Estate, unless OP acts irrationally.
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  • madbadrobmadbadrob Forumite
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    ValHaller wrote: »
    AFAICS any court case will be Estate vs Sister. If a possession order is granted, costs will be against Sister, who will have to pay out of her share of the Estate, leaving OP's inheritance intact. If Sister wins, costs will be against the Estate, unless OP acts irrationally.

    I agree however this would require the court to make that decision and in some instances they would say costs cannot be recovered. There are many complications here and I would seek professional advice before proceeding in any other action
  • Sw10Sw10 Forumite
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    Whether the estate bears the costs of making a court application depends on the exact wording of the Will.

    For example, if I make a Will and say "I direct that my property ... is sold as soon as possible following my death and I give the net proceeds of sale to my children equally" then clearly there is an obligation on the executor to sell it. Therefore the costs of applying to court for an eviction or an order for sale can be met from the estate.

    However, if I make a Will and say "I give my property .... to my children in equal shares and I express the wish that it is sold as soon as possible following my death" - the executor's only obligation is to transfer the house to the children and it is up to them to slog it out in court if one wishes to sell and the other doesn't and they will bear the cost of this themselves.

    In either case, the court will invariably order the sale if you make an application for such an order (as jointly owned property is held on trust to sell or retain but can only be retained if all owners agree). However, in the latter case, the cost to the beneficiary wishing to sell could potentially be higher.

    Also, given that your sister lived with your father prior to his death, it would be advisable to make sure that 6 months since the date probate was granted has passed before making any court application; otherwise your sister could make an application under the Inheritance (Provision for Family and Dependants) Act 1975 and ask the court to grant her the right to continue living there (or a greater share of the net proceeds).
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